NBA should be an attack dog to government – SAN

September 4th, 2018

Mr. Emeka Okpoko is a Senior Advocate of Nigeria. In this interview with AMEH EJEKWONYILO, the Lagos-based SAN spoke on President Muhammadu Buhari’s recent assertion on the concept of rule of law and national interest and security. He also bared his mind on what is expected of the new leadership the Nigerian Bar Association in Nigeria’s body polity.

What are your thoughts on President Buhari’s recent comment that the concept of rule of law is subject to national interest and security?

There is no way you can subject the rule of law to the whims and caprices of anybody; national security or whatever principle you interpret it. The rule of law and the supremacy of the law is the fulcrum (the foundation and the fundamental requirement) in any democratic setting.

It is so important that it is the rule of law that will continue to energise and galvanise the system. You cannot subject the rule of law to national security. Who then interprets national security if you don’t go back to those who interpret the law? Is it going to be an interpretation that is going to be made by one man?

So, whatever you call national security, you cannot do so without recourse to the court. Is it not the court that will agree with you that this act or conduct would affect national security? Is it not still by complying with the rule of law? You must comply with the rule of law before you can even talk about national security, because if there is no law, there might not be even security to talk about.

If you recall the days before the Social Contract theory, man was living like wild animals; behaving anyhow. And that was why at a stage, men came together and said all these powers we have individually could be handed over to an authority or body who would regulate same instead of everyone of us exercising our powers animalistically in our own various ways. And that was shy the social contract theory came to being and came together and handed all their powers to an authority, and that authority is government. That is the beginning of rule of law.

So, I do not subscribe to the view that rule of law should be subjected to national security. No.

If you leave the interpretation being given today or the President’s statement as it regard the rule of law and national security, it means that the executive arm of government can pick and choose who to arrest anytime, detain and takeover the person’s property at anytime all in the name of national security. Who then interprets national security? The executive would then do their work as the arresting authority, then they would decide it; taking over the role of the judiciary.

Look at the decisions in the case of former National Security Adviser, Col Sambo Dasuki (Rtd) and El-Zakzaky, the court had said, “bail granted.” Leave these people, but you are saying in the interest of national security. You came to court; arguments were canvassed, you lost. The court had listened to arguments from both sides; weighed the options, put them on the imaginary scale of justice and formed an opinion that you should grant them bail. Then you turned around said, “in the interest of national security”. That is whimsical! And that is totally wrong and undemocratic. That cannot be justified. Can the president’s postulation on rule of law and national security be tied to the Executive Order 6, which he recently signed, which lawyers have argued that the order amounts to taking away the powers of the court to adjudicate on the issue of financial crime?

That order is purely usurpative of the functions of the judiciary. That order is also unconstitutional, because it is the court that has to listen to arguments and deliver judgments on cases. Of course, anyone can be accused of any crime and there are also situations where you might even have trumped up charges (charges that are not real) to deal with an enemy; a setup calculated to either achieve political victimisation or other malafide purposes.

Someone must be heard in court before decision is taken one way or the other in respect of anything that has a prejudicial effect on him. How can you suddenly forfeit somebody’s property on grounds that he acquired that property by fraudulent means when the person has not even been given an option to show the world (an impartial umpire) how he acquired the property? It is only when that is done that it can be said that the appropriate thing has been done.

So, that law which now negates all those principles is as unconstitutional as it stands. And I believe if taken further, the court will set it aside. The NBA has new leadership in place. What should the Bar executive be doing in terms of promotion of rule of law which is the NBA’s slogan?

It is an interesting question. But you can see that the NBA is fraught with problems here and there. The election which led to the emergence of the new executive seems to have a lot of issues.

The important point is that the NBA is a body of lawyers and being the body of lawyers, it is the responsibility which is also part of the motto of the association; to fight and protect the rule of law, which means the NBA has a duty to challenge every legislation that is unconstitutional, every executive action that is wrong. The NBA should be an attack dog to the government once it functions in a manner that is contrary to the law. The NBA must come out and frontally confront the government anytime it does what is contrary to the law.

As an association, we shouldn’t wait until members of the society begin to talk. The NBA should even spearhead all these things. We should be at the forefront of guiding the government to good governance.

We owe a duty to ensure that everybody is brought to confine himself within the ambit of the law.

So, I expect the new NBA executive to go back to the Bar motto, examine it critically and make sure that they follow the nitty-gritty of that mantra. They must ensure that rule of law is being strictly followed in Nigeria. The NBA can always go to court to challenge any arbitrary action of government. What do you make of the recent comment by the British Prime Minister, Theresa May, that Nigerians are among the poorest people in the world?

It is true in the sense that this is a country where you see billionaires yet you see people who have no penny. If you go to some parts of the North, you would see poverty walking. Even in some parts of the South-East, you would find very poor people. The British Prime Minister could not have just said that without looking at some statistics that point to that fact.

In developed countries, the system has struck a balance; taking care of poor people in terms of accommodation, healthcare and education. For instance, if you want to move into a house as long as you have a job, you move and pay over a long period of time; you may have mortgages for thirty years. But here, it is not like that. In Nigeria, if you want a house of N50 million, what remains is for them to demand that you come to that venue with a truckload of cash, which shouldn’t be. The same way if you want a car of N4 million, you must pay in cash.

Even those without jobs, the system takes care of them.

But here, everything you desire must be paid for in cash. It is excruciating.

So, what should the government do take Nigerians out of poverty?

I think we should keep working hard to ensure that the system advances to a level that some of these basic infrastructural amenities are available.